By Alexander Bolton - 04/08/14 06:00 AM EDT
Senate Democrats and liberal groups are mounting a pressure campaign against the Supreme Court, hoping to influence future decisions by blasting conservative justices for alleged political bias.
The effort from the left also portrays the high court as an instrument rigged to help the wealthy, and is intended to energize Democratic voters and increase turnout in the midterm elections.
Some legal experts see the effort as akin to basketball or soccer players “working the ref” in a high-stakes game.
Critics say Democratic leaders used a similar strategy in 2010, when they piled on the court for striking down the ban on political spending by corporations in Citizens United v. Federal Election Commission.
Some court watchers speculated that Chief Justice John Roberts felt chastened by the angry reaction and sought to avoid another uproar, when he crafted the majority decision in 2012 that largely upheld ObamaCare.
“The left clearly tried to work the refs on the Affordable Care Act,” said Randy Barnett, a professor at the Georgetown University Law Center. “They worked the refs after Citizens United, which helped set things up for the Affordable Care Act challenge. If it seems to work, why not continue? It’s unfortunate, I think, that they’ve been encouraged in this behavior by its apparent success.”
With another major decision pending in Sebelius v. Hobby Lobby Stores, Inc., which will decide the constitutionality of a federal mandate on employers to cover birth control, Democrats have stepped up their criticism.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senate Rules Committee Chairman Charles Schumer (D-N.Y.) plan to hold hearings on the court’s ruling in McCutcheon v. Federal Election Commission striking down aggregate limits on campaign donations.
After last week’s ruling, Leahy said, “five justices once again have decided to rule on the side of moneyed interests and against the American people.”
Democrats and allied groups say the court has become a champion of powerful corporate interests over middle-class families.
Senate Majority Harry Reid (D-Nev.) panned it for granting greater influence to wealthy donors, such as Charles and David Koch, the wealthy conservative donors, whom he again slammed on the Senate floor Monday.
“The legal groups will be doing a full-fledged, increasingly severe critique of the court as a court for plutocrats,” said Robert Borosage, co-director of Campaign for America’s Future, a liberal advocacy group.
Barnett said Democrats are likely using the court to rev up Democratic voters in the same way they have used the Koch brothers.
“This very well likely is also about finding an issue other than healthcare and the economy in 2014. This is like attacking the Koch brothers from the floor of the Senate every other day,” he said. “It’s another way of trying to gin up the base of the Democratic Party.”
The effort also reflects the frustrations of Democratic senators, who see the court’s majority as too often being an extension of the GOP.
“We see the Supreme Court behaving in a way that would be matched if the five conservative justices made it a strategy to go off and sit in a room by themselves and decide how best to implement the Republican agenda, and came out and did it,” said Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee.
The Progressive Change Campaign Committee has begun running online ads urging potential supporters to push back against the court by signing a petition pledging support for the Government by the People Act. The legislation would use refundable $25 tax credits to encourage citizens to fund campaigns and provide matching funds to candidates who agreed to limits on large donations.
Democrats have signaled to conservative justices that an even greater uproar would ensue if they struck down language in the Affordable Care Act mandating employers include birth control in their employee healthcare coverage.
Democrat Shenna Bellows, who is running against Sen. Susan Collins (R) in Maine, recently joined a rally of women’s groups on the steps of the Supreme Court to press the justices to uphold the controversial language.
Liberal strategists say the broader movement could resemble the “Impeach Earl Warren” movement of the 1960s, which paved the way for the more conservative court headed by Chief Justice Warren Burger in the 1970s.
“They wish to dismantle all limits on giving, piece by piece, until we are back to the days of the robber barons, when anyone or anything could give unlimited money, undisclosed, and make our political system seem so rigged that everyone will lose interest in our democracy,” Schumer said of the court.
Democrats say the present-day court lacks the experience to understand the corrupting influence of money in politics, because none of its members have held publicly elected office. Warren served as governor of California before presiding as chief justice from 1953-1969, when the court issued landmark rulings celebrated by liberals in Brown v. Board of Education and Miranda v. Arizona.
Sen. Tom Udall (D-N.M.) is circulating a “Dear Colleague” letter within the Senate Democratic caucus to build support for a constitutional amendment that would grant Congress clear authority to regulate the campaign finance system.
“Our constituents’ faith in the election system has been fundamentally corrupted by big money from outside interest groups,” he wrote.